# Wrongful death after a car accident: how a family's claim works > Wrongful death claims after a fatal crash: how they differ from survival claims, who may file, state deadlines, damages and how money is divided. Canonical page: https://accidentclaimfacts.com/injuries/wrongful-death/ Last reviewed: October 29, 2026 by the Accident Claim Facts editorial team General information, not legal advice. Talk to a licensed attorney in your state. ## Quick answer When someone dies because of another driver's wrongful conduct, state law allows a wrongful death claim for the family's losses, and usually a separate survival action for what the person who died suffered before death. Who may file depends on the state: in Texas the spouse, children and parents can sue directly; in New York only the estate's personal representative can; California allows either. Deadlines are short: in Texas the deadline is 2 years, in California 2 years, in New York 2 years and in Tennessee only 1 year. ## Key facts | Fact | Detail | Note | |---|---|---| | People killed in US traffic crashes, 2024 | 39,254 | NHTSA | | Texas filing deadline | 2 years from the date of death | Tex. Civ. Prac. & Rem. Code § 16.003(b) | | California filing deadline | 2 years from the date of death | Cal. Code Civ. Proc. § 335.1 | | New York filing deadline | 2 years from the date of death | N.Y. Est. Powers & Trusts Law § 5-4.1(1) | | Tennessee filing deadline | 1 year | Among the shortest | | Who the claim benefits in Texas | the surviving spouse, children and parents | Tex. Civ. Prac. & Rem. Code § 71.004 | | Who files in New York | the personal representative of the estate | N.Y. EPTL 5-4.1 | ## Two claims: wrongful death and survival Losing someone in a crash is devastating, and the legal side can feel like the last thing anyone wants to face. It helps to know that the law usually recognizes two separate claims, often brought together. | | Wrongful death claim | Survival claim | |---|---|---| | Whose loss | The family's, because of the death | The person who died, for harm before death | | Typical losses | Lost financial support, funeral costs and, in some states, loss of companionship | Medical bills and lost pay between the crash and death, and in some states pain before death | | Who brings it | Family members or the personal representative, depending on the state | The estate's representative or, in some states, the heirs | Texas shows how the survival claim works: under its Civil Practice and Remedies Code, a personal injury claim survives to and in favor of the heirs, legal representatives, and estate of the injured person. In other words, the claim the person could have brought had they lived does not end with their death. States limit survival damages in different ways. In California, a survival claim is brought by the personal representative or, if there is none, the successor in interest, and its damages cannot include the person's pain, suffering or disfigurement, except in certain cases filed from January 1, 2022, through December 31, 2025. ## Who may bring the claim Each state decides who may file and for whose benefit. Three large states show how much the rules differ. **Texas.** A wrongful death claim is for the exclusive benefit of the surviving spouse, children and parents of the person who died. Any of them may sue, or one may sue for the benefit of all. If none of them has filed within 3 months after the death, the executor or administrator must bring the claim, unless all of them ask that it not be brought. **California.** Code of Civil Procedure § 377.60 lets the claim be brought by the spouse or registered domestic partner, children and descendants of deceased children (or the heirs if there are none), certain dependents, or the personal representative on their behalf. The "certain dependents" include, for example, a minor who lived in the home and depended on the person who died. **New York.** Only the personal representative of the estate may bring the claim, for the benefit of the family members who inherit under state law. The personal representative is appointed through the Surrogate's Court, so opening the estate is often the first legal step for a New York family. Other states fall somewhere between these models. A licensed attorney in your state can tell you who has the right to file and whether a court must appoint someone first. ## Deadlines vary by state Wrongful death deadlines are short, and in most states the clock starts on the date of death, not the date of the crash. | State | Deadline | Starts from | Law | |---|---|---|---| | Texas | 2 years | the date of death | Tex. Civ. Prac. & Rem. Code § 16.003(b) | | California | 2 years | the date of death | Cal. Code Civ. Proc. § 335.1 | | New York | 2 years | the date of death | N.Y. Est. Powers & Trusts Law § 5-4.1(1) | | Florida | 2 years | the date of death | Fla. Stat. § 95.11(5)(e) | | Tennessee | 1 year | — | Tenn. Code Ann. § 28-3-104(a)(1); Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771 (Tenn. Ct. App. 1983) | New York adds one exception: if a criminal case is brought against the same defendant, the personal representative has at least 1 year after the criminal case ends, even if the usual deadline has passed. > **Warning:** If a government vehicle or road was involved, a written notice may be due much sooner. In Texas, notice to a government body is due within 6 months of the incident, and a city charter can require less. Every state's wrongful death deadline is listed on its page in our [state-by-state guide](https://accidentclaimfacts.com/location/), and the [deadline calculator](https://accidentclaimfacts.com/tools/deadline-calculator/) can help count the days. ## Damages families may claim The losses a family may claim depend on state law. These are the main types, though not every state allows all of them: - **Funeral and burial costs.** - **Medical bills** for care between the crash and the death. - **Lost financial support:** the income and benefits the person would have provided. - **Lost household services,** such as childcare, driving and home repairs. - **Loss of companionship, care and guidance,** sometimes called loss of consortium. - **Mental anguish and grief,** in states that allow it. - **Punitive or exemplary damages,** in limited cases. The differences are real. New York limits the family's wrongful death damages to fair and just compensation for the pecuniary (financial) injuries the death caused the family, plus reasonable medical and funeral expenses. Texas law, by contrast, counts loss of companionship and mental anguish among non-economic damages, and in a wrongful death case it allows exemplary damages when the death is caused by the wilful act or omission or gross negligence of the defendant. Our guide to [types of damages](https://accidentclaimfacts.com/money/types-of-damages/) explains each category. ## How money is divided How a recovery is shared depends on the state, and on whether the case is settled or decided by a jury: - **Texas:** damages in a verdict are divided in shares found by the jury among the family members entitled to recover. The damages are not subject to the debts of the deceased. - **California:** the court decides each person's share of the award. - **New York:** whether the case is settled or tried, damages are shared in proportion to the financial loss each family member suffered, as decided by a court after a hearing. When a lawsuit is pending, the court must approve or reject the proposed settlement in writing. When a child is entitled to part of a recovery, a court usually has to approve the settlement. In Texas, a next friend may settle a child's lawsuit only with the court's approval, and an approved settlement binds the child. In Florida, no settlement of a minor's lawsuit takes effect unless the court approves it. A court may also appoint a guardian ad litem to look after the child's interests. Medical providers and health plans that paid bills before the death may claim repayment from the recovery, so families often ask for a full accounting of liens before anything is signed. ## First steps families often take There is no single right order, and grief takes its own time. Many families find these steps useful in the first weeks: - get several certified copies of the death certificate; - request the [police report](https://accidentclaimfacts.com/claim-process/police-report/) and keep the report number; - gather the person's insurance policies, pay records and medical bills; - ask the probate court how to open the estate and appoint a representative; - keep a list of every call or letter from insurers, and hold off on signing any release until you understand it. A lawyer is not required, but wrongful death cases mix injury law with estate law, and deadlines are tight. Many families speak with a licensed attorney early. Our guide to [choosing a lawyer](https://accidentclaimfacts.com/choosing-a-lawyer/) explains fees and what to ask, and the [claim process guide](https://accidentclaimfacts.com/claim-process/) shows how a claim moves from report to settlement. ## FAQ ### What is the difference between a wrongful death claim and a survival claim? A wrongful death claim compensates the family for their own losses from the death, such as lost support. A survival claim is the claim the person who died could have brought had they lived, such as for medical bills before death, and it is usually brought by the estate. ### Who can file a wrongful death claim after a car accident? It depends on the state. In Texas, the surviving spouse, children and parents can file; in New York, only the personal representative of the estate; in California, listed family members or the personal representative on their behalf. ### How long do we have to file a wrongful death lawsuit? Usually two or three years, often counted from the date of death: 2 years in Texas, 2 years in California and 2 years in New York, but 1 year in Tennessee. Claims involving a government body can need notice much sooner. ### What damages can a family recover in a wrongful death case? Common types include funeral costs, medical bills, lost financial support and lost household services. Some states, such as Texas, also recognize loss of companionship and mental anguish, while New York limits the family's claim to financial losses and expenses. ### How is a wrongful death settlement divided? It depends on the state. In Texas, a jury's award is divided in the shares the jury finds; in California the court decides each person's share of an award; in New York a court divides the money in proportion to each person's financial loss, whether the case settles or goes to trial. ### Does a settlement for a child need court approval? Often, yes. In Texas and Florida, for example, a settlement of a child's lawsuit takes effect only with the court's approval, and a court may appoint a guardian ad litem to protect the child's share. ### Can creditors take a wrongful death recovery? In Texas, wrongful death damages are not subject to the debts of the deceased. Survival damages belong to the estate, so the rules for an estate's debts can apply to them. A licensed attorney can explain how this works in your state. ## Sources - [Texas Legislature, Civil Practice and Remedies Code chapter 71](https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm) — wrongful death and survival - [New York State Senate, EPTL 5-4.6](https://www.nysenate.gov/legislation/laws/EPT/5-4.6) — court approval of compromises and guardians ad litem for children - [Texas Legislature, Civil Practice and Remedies Code § 16.003(b)](https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm), checked October 29, 2026 - [California Legislature, Code of Civil Procedure § 335.1](https://law.justia.com/codes/california/code-ccp/part-2/title-2/chapter-3/section-335-1), checked October 29, 2026 - [New York State Senate, EPTL 5-4.1](https://www.nysenate.gov/legislation/laws/EPT/5-4.1), checked October 29, 2026 - [U.S. District Court N.D. Ala. (govinfo), Murphy v. McGriff Transportation (2012), quoting Tennessee case law](https://www.govinfo.gov/content/pkg/USCOURTS-alnd-2_11-cv-02754/pdf/USCOURTS-alnd-2_11-cv-02754-0.pdf), checked October 29, 2026 - [Supreme Court of California, Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 (via SCOCAL)](https://scocal.stanford.edu/opinion/norgart-v-upjohn-co-32045), checked October 29, 2026 - [California Legislature, Code of Civil Procedure § 377.30 (via California.Public.Law)](https://california.public.law/codes/code_of_civil_procedure_section_377.30), checked October 29, 2026 - [California Legislature, Code of Civil Procedure § 377.34 (via California.Public.Law)](https://california.public.law/codes/code_of_civil_procedure_section_377.34), checked October 29, 2026 - [California Legislature, Code of Civil Procedure § 377.60 (via California.Public.Law)](https://california.public.law/codes/code_of_civil_procedure_section_377.60), checked October 29, 2026 - [Florida Legislature, Florida Statutes § 95.11(5)(e)](https://www.flsenate.gov/Laws/Statutes/2026/95.11), checked October 29, 2026 - [Florida Legislature, Florida Statutes § 95.031(1)](https://www.flsenate.gov/Laws/Statutes/2026/95.031), checked October 29, 2026 - [Texas Legislature, Civil Practice and Remedies Code § 101.101(a)](https://statutes.capitol.texas.gov/Docs/CP/htm/CP.101.htm), checked October 29, 2026 - [New York State Senate, EPTL 5-4.3](https://www.nysenate.gov/legislation/laws/EPT/5-4.3), checked October 29, 2026 - [California Legislature, Code of Civil Procedure § 377.61 (via California.Public.Law)](https://california.public.law/codes/code_of_civil_procedure_section_377.61), checked October 29, 2026 - [New York State Senate, EPTL 5-4.4](https://www.nysenate.gov/legislation/laws/EPT/5-4.4), checked October 29, 2026 - [Supreme Court of Texas, Texas Rules of Civil Procedure, Rule 44](https://txcourts.gov/media/1463426/texas-rules-of-civil-procedure.pdf), checked October 29, 2026 - [Florida Legislature, Florida Statutes § 744.387(3)(a)](https://www.flsenate.gov/Laws/Statutes/2026/744.387), checked October 29, 2026 - [NHTSA, Overview of Motor Vehicle Traffic Crashes in 2024 (DOT HS 813 791)](https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813791), checked April 1, 2026